Citation Nr: 0307175
Decision Date: 04/15/03 Archive Date: 04/24/03
DOCKET NO. 98-10 769 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased rating for a right ankle
disability, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Jewish War Veterans of the
United States
ATTORNEY FOR THE BOARD
B.E. Jordan, Counsel
INTRODUCTION
The veteran had active military service from November 1972 to
November 1982.
This appeal to the Board of Veterans' Appeals (Board) arises
from a July 1997 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
FINDINGS OF FACT
1. The veteran's right ankle disability is manifested by
pain, instability, swelling. Flexion is to 15 degrees,
extension to 40 degrees, inversion to 20 degrees, and
eversion to 5 degrees.
2. There is no evidence of ankylosis of the right ankle.
3. The veteran's right ankle manifestations do not present
as unusual or exceptional and are not shown to require
frequent periods of hospitalization or marked interference
with employment rendering impractical the use of the
schedular standards.
CONCLUSION OF LAW
The criteria for assignment of a rating in excess of 20
percent for service-connected right ankle disability have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R.
§§ 3.321(b)(1), 4.71a, Diagnostic Code 5271 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002),
prescribed VA's duties of notice and assistance to claimants
for VA benefits. VA has promulgated regulations implementing
the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a))
(2002).
VA must provide forms necessary to prosecute a claim for VA
benefits. 38 U.S.C.A. § 5102 (West 2002); 38 C.F.R. §
3.150(a) (2002). There is no specific claim form required in
order to claim entitlement to a higher disability evaluation,
and there is no issue as to provision of necessary form for
that benefit.
VA must notify the veteran of evidence and information
necessary to substantiate his claim and must inform him what
information and evidence, if any, he is to provide and what
information and evidence, if any, VA will provide. 38
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2002);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). When
the veteran filed his claim for increase, he asked for and
was given a VA examination to determine the current condition
of his right little finger. In October 2002, VA informed the
veteran it was ordering a VA examination to determine the
level of severity of the right ankle disability. The veteran
was advised that he would receive notice in writing of the
time, place, and date of the examination. The veteran was
also informed that it was his responsibility to report to the
examination.
In a letter and a supplemental statement of the case dated in
December 2002, VA notified the veteran of his and VA's
responsibilities with respect to developing evidence to
substantiate his claim. As to the veteran's
responsibilities, the veteran was asked to provide
information about where, when, and from whom he had received
any treatment for the right ankle, and he was asked to sign a
release for each such care provider and return it to VA so
that VA could request the records. As to VA's
responsibilities, he was informed that VA would obtain things
such as medical records, employment records, or records from
other Federal agencies. However, the veteran was informed
that ultimately it was his responsibility to make sure that
VA received those records. VA has discharged its duty to
notify the veteran of the evidence and information necessary
to substantiate his claim.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d)
(2002). Such assistance includes making every reasonable
effort to obtain relevant records (including private medical
records and those possessed by VA and other Federal agencies)
that the claimant adequately identifies to the Secretary and
authorizes the Secretary to obtain. 38 U.S.C.A. § 5103A(b)
and (c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2002). VA
has obtained and associated with the claims file all VA
medical records pertinent to this matter.
Assistance shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. 38
U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2002). VA afforded the veteran examinations in June and
August 1997 and November 2002. The examination reports
contained adequate clinical findings and diagnoses pertinent
to the claim at issue.
There is no indication in the claims file that evidence
exists that VA did not seek or that VA sought unsuccessfully.
Consequently, this case does not trigger VA's duty to notify
the veteran of a failure to obtain evidence from any source.
38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)).
There are no areas in which further development is required
or would be helpful. The RO has notified the veteran of the
requirements of the VCAA, and such requirements as apply have
been substantially met by the RO.
II. Increased Rating
In August 1983, the RO granted service connection for
residuals of postoperative Evan's procedure of the right
ankle. A 20 percent disability evaluation was assigned,
effective November 1982.
In April 1997, the veteran filed a claim for an increased
rating for his service-connected right ankle disability.
VA outpatient treatment records reflect that the veteran was
seen for right ankle problems, among other things. X-rays of
the right ankle dated in December 1996 revealed moderate soft
tissue swelling, particularly over the medial malleolus.
Clinical findings in December 1996 revealed pedal edema of
the right ankle. Subjective complaints included ankle pain
and swelling. In February 1997, it was noted that X-rays of
the right ankle were normal; there was no evidence of
degenerative changes, and the mortis was in good position.
On physical examination, dorsiflexion and plantar flexion of
the right ankle appeared equal to the opposite side; the
veteran appeared to be adequately stable with good end point
on inversion stressing.
The veteran underwent VA examinations in June and August
1997. Those records reflect subjective complaints of right
ankle pain. In June 1997, it was noted that the veteran wore
an ankle brace and that he walked with a slight limp favoring
the right leg. There was no motor weakness of the everters
or inverters of the right ankle. Dorsal flexion of right
ankle was to 20 degrees; plantar flexion was to 40 degrees.
The examiner reviewed the x-rays taken in December 1996 and
observed a slight widening of the ankle mortis with no other
abnormities noted. It was noted that ankle instability
appeared to be mild-which gave the veteran problems when
walking on uneven ground and on stress.
The report of the August 1997 examination reflects that the
veteran has held a number of employment positions since he
separated from service and at that time was working in a
tollbooth 40 hours a week. The veteran reported ankle
swelling and soreness. A physical examination revealed, in
pertinent part, a scar on the lateral side of the right
ankle. The veteran wore a right ankle brace, without which
he walked with severe foot inversion. Dorsiflexion of the
right ankle was 0 to 10 degrees; plantar flexion was 0 to 30
degrees. The examiner indicated that there was minimal
difference (in range of motion) between the two sides but
added that there was limitation of range of motion after
prolonged standing. Subtalar motion of the right ankle was
not limited and was the same as the left ankle. The examiner
reviewed the x-rays of the right ankle dated in July and
August 1997 and found them to be negative for degenerative
arthritis. The diagnosis was status post modified Evan's
procedure of the right ankle, dependent edema due to chronic
venous insufficiency and varicose veins of the right leg.
The examiner stated that the venous insufficiency and
varicose veins were not caused by the right ankle strain or
surgical procedure.
Subsequent VA outpatient records dated from 1999 to 2002
reflect continued complaints of and treatment for the right
ankle disability. In February 1999, the veteran reported
having been in a minor car accident two days prior and felt
that the accident might have caused soreness in the right
ankle; although he did not remember having injured the ankle
during the accident. There was no deficit in range of
motion. The veteran did not walk with a limp, and he did not
favor the right.
At a November 2002 VA examination, the veteran reported right
ankle pain which he said is between 8-10 per day, swelling,
weakness, "cracking and popping" of the right ankle. The
veteran indicated that he wore an ankle brace to keep down
the swelling. At the time of the examination, the veteran
was gainfully employed. The veteran indicated that he had
lost a number of jobs because of his right ankle disorder,
but he said he could not prove it. A physical examination of
the right ankle revealed, in pertinent part, that the veteran
was using a right ankle fixation orthodic (AFO) with ankle
joint for support of the right ankle. The dorsiflexors and
plantar flexors were at least 5/5. His invertors were 5(-
)/5; the evertors were 4/5. Ankle jerk was +2, and the
plantar response was downgoing. The examiner observed a 14-
centimeter scar, non-adherent and non-tender at the beginning
superior to the lateral malleous and ending anterior to the
aforementioned structure. The scar was well healed and not
disfiguring. Range of the motion of the right ankle was as
follows: flexion was to 15 degrees; extension was to 40
degrees, inversion to 20 degrees, and eversion was to 5
degrees. The examiner observed that the veteran walked
without the use of assistive hand held device; however he
utilized a modified AFO with ankle joint for stability. The
veteran was independent in his activity of daily living. The
veteran did not appear to be in any significant discomfort.
X-rays of the right ankle dated in November 2002 showed very
little change as compared to July 1997 study. This
examination contains sufficient detail for rating the
veteran's disability.
Disability ratings are intended to compensate impairment in
earning capacity due to a service-connected disorder. 38
U.S.C.A. § 1155 (West 2002). Separate diagnostic codes
identify the various disabilities. Id. Evaluation of a
service-connected disorder requires a review of the
appellant's entire medical history regarding that disorder.
38 C.F.R. §§ 4.1, 4.2 (2002). If there is a question as to
which evaluation to apply to the veteran's disability, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7 (2002). These requirements for evaluation of the
complete medical history of the claimant's condition operate
to protect claimants against adverse decisions based on a
single, incomplete or inaccurate report to enable VA to make
a more precise evaluation of the level of disability and of
any changes in the condition. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). Moreover, VA has a duty to acknowledge and
consider all regulations which are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusion.
While the Board must consider all potentially applicable
diagnostic codes, care must be taken to avoid evaluating the
same manifestations of disability more than once using
different diagnostic codes, which would constitute
"pyramiding." 38 C.F.R. § 4.14 (2002).
Once the evidence is assembled, the Secretary is responsible
for determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied, if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. Examinations on which ratings are based must
reflect the anatomical damage and functional loss with
respect to all these elements. Functional loss may be
attributed to several factors, one of which is pain,
supported by adequate pathology and evidenced by the visible
behavior of the claimant; weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40
(2002). As regards the joints the factors of disability
reside in reductions of their normal excursion of movements
in different planes. Inquiry will be directed, but not
limited to, excess fatigability, pain on movement, swelling,
deformity, or atrophy of disuse. Instability of station,
disturbance of locomotion, interference with sitting,
standing and weight bearing are related considerations.
38 C.F.R. § 4.45 (2002).
The veteran's service-connected right ankle disability rated
at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5271,
which pertains to limitation of motion of the ankle. Under
that code a 20 percent evaluation is assigned for marked
limitation of motion of the ankle. 38 C.F.R. § 4.71a,
Diagnostic Code 5271.
The normal ranges of ankle motion are from zero to 20 degrees
on dorsiflexion and zero to 45 degrees on plantar flexion. 38
C.F.R. Part 4, Plate II (2002).
In that connection, the assignment of a higher disability
evaluation under Diagnostic Code 5271 is not warranted in
that 20 percent is the maximum evaluation under that
scheduler rating. Diagnostic Code 5271.
In order for the veteran to be assigned a higher disability
evaluation, there must be evidence of ankylosis of the right
ankle. Under Diagnostic Code 5270, a 30 percent disability
evaluation is assigned for ankylosis of plantar flexion
between 30 and 40 degrees, or in dorsiflexion between 0 and
10 degrees. A 40 percent disability evaluation was warranted
for plantar flexion at more than 40 degrees, or, in
dorsiflexion at more than 10 degrees or with abduction,
adduction, inversion or eversion deformity. Diagnostic Code
5270.
Ankylosis is defined as immobility and consolidation of a
joint due to disease, injury, or surgical procedure.
Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) [citing
DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (27th ed. 1988) at
91]. However, there is no evidence of ankylosis of the right
ankle in this case. Current range of motion findings of the
right ankle reflect that flexion is to 15 degrees, extension
to 40 degrees, inversion to 20 degrees, and eversion is to 5
degrees.
In reaching this determination, the Board considers the
veteran's complaints of pain and his contention that he
should be rated separated for pain. However, consideration
of functional loss due to pain is not required when the
current rating is the maximum disability rating available for
limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 85
(1997). As noted, the maximum rating available under the
Schedule for right ankle motion limitation is 20 percent.
Such is the highest rating available based on ankle
disability absent evidence of ankylosis. See 38 C.F.R. §
4.71a, Diagnostic Code 5270 (2002). The competent evidence
in this case clearly shows the veteran's right ankle is not
ankylosed in either a favorable or unfavorable position.
Under the provisions of 38 C.F.R. § 3.321, in exceptional
cases, an extraschedular evaluation can be provided. The
governing norm in such a case is that there be such an
unusual or exceptional disability picture with such related
factors as marked interference with employment (i.e. beyond
that contemplated in the assigned ratings) or frequent
periods of hospitalization as to render impractical the
application of regular schedular standards. In this case
marked interference with employment has not been shown. The
evidence shows that the veteran is currently gainfully
employed. Moreover, the evidence does not show that the
veteran has had any recent hospitalization for the right
ankle disability.
For all of the foregoing reasons, the veteran's claim for an
increased rating for a right ankle disability must be denied.
In reaching this conclusion, the Board has considered the
applicability of the benefit of doubt doctrine. However, as
the preponderance of the evidence is against the veteran's
claim, the doctrine is not applicable in the instant appeal.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1991). In addition, the preponderance of the evidence is
against referral for consideration on an extraschedular
basis.
ORDER
Entitlement to an increased rating for a right ankle
disability is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.